CloudNuro Commercial Terms of Service effective day as of April 27 th , 2021
CloudNuro LLC, an Illinois Corporation (“CloudNuro”), provides its software application footprint and usage analysis products and services, which may include software and/or hosted subscription services (collectively “Service(s)”) to you (“Customer”) pursuant to these CloudNuro Terms of Service (the “Agreement”). BY ENTERING INTO A SERVICES ORDER FORM (OR OTHER ORDERING DOCUMENT) OR SERVICES-RELATED AGREEMENT WITH CLOUDNURO (EACH AN “ORDER FORM”) OR OTHERWISE REGISTERING FOR, ACCESSING OR USING THE SERVICES, the Customer UNCONDITIONALLY ACCEPTS AND AGREES TO ALL OF THE TERMS OF THIS AGREEMENT. BY ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, the Customer REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, AND, ACCORDINGLY, THE TERMS “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF the Customer DOES NOT HAVE SUCH AUTHORITY, OR the Customer DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, the Customer MAY NOT USE THE SERVICES. In consideration of the foregoing, the parties agree as follows:
1. Acceptance. These ToU are a legal agreement between you, the user (“You” or the “User”), and CloudNuro. By accessing, browsing, submitting information to, or otherwise using the Website, you signify your assent to these ToU. If you do not agree to any of these terms, then please do not use the Website. You agree to review these ToU from time to time and agree that any subsequent access to or use by you of the Website following changes to the ToU shall constitute your acceptance of all such changes
2. Applicability. This ToU applies to all users of the Website. The Website may contain links to third-party websites that are not owned or controlled by CloudNuro. CloudNuro has no control over and assumes no responsibility or liability for any third-party website content, privacy policies, or practices. In addition, CloudNuro will not and cannot censor or edit the content of any third-party website. Please note that the policies and procedures of CloudNuro described herein do not apply to these third-party websites. CloudNuro recommends that you contact these third-party websites directly for information on their privacy, data collection, and security policies. By using the Website, you expressly relieve CloudNuro from all liability arising from your use of any third-party website or its products.
3. Electronic Communications. When you contact CloudNuro through the “Contact Us” or the “Request A Demo” options, you communicate with us electronically. For that purpose, you shall be required to provide your contact information, including your email address; by that, you permit us to contact You through the communication details provided by You. If You do not wish to provide us with such communication details or do not wish CloudNuro to use such communication details as set forth herein, please do not provide such details; however, please note that provision of such communication details is a pre-requisite condition to use these options in the Website. Without derogating from Section below’s provisions, you hereby agree that all agreements, notices, disclosures, and other communications that CloudNuro provides You electronically satisfy any legal requirement that such communications be in writing.
4. SERVICES AND SUPPORT
4.2. CloudNuro reserves the right to change or modify portions of this Agreement at any time. If CloudNuro does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. CloudNuro will also notify Customer, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or changes made for legal reasons may become effective immediately. Customer’s continued use of the Service after the date any such changes become effective constitutes acceptance of the new Agreement.
4.3. From time to time, Customers may be invited to try certain services at no charge for a free trial, pilot, or evaluation period or if such services are not generally available to customers (collectively, “Pilot Services”). Pilot Services will be designated on the applicable Order Form as beta, pilot, POC (Proof of Concept), evaluation, trial, limited release, or the like. Pilot Services are (i) for Customer’s internal evaluation purposes only and not for production use, (ii) are provided free of charge, except for any “Pilot Use Fee” specified on the relevant Order Form, (iii) are not supported, are provided “AS IS” without warranty of any kind, (iv) are provided without any indemnification provision of any kind, and (v) may be subject to additional terms and restrictions pursuant to the applicable Order Form. Unless otherwise stated on the relevant Order Form, any Pilot Services trial period will expire 60 days from the trial start date and will not automatically renew. CloudNuro may discontinue Pilot Services at any time in its sole discretion and may never make them generally available. CloudNuro will have no liability for any harm or damage arising out of or in connection with any Pilot Services.
5. RESTRICTIONS AND RESPONSIBILITIES
5.1. Customer will only use the Services as expressly permitted herein and in the applicable Order Form and agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by CloudNuro or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; or modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks. With respect to any Software (in any form) that is provided to Customer, CloudNuro hereby grants the Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software solely internally in connection with the Services and for no other purpose. All Software is Confidential Information of CloudNuro and subject to the terms of Section 5.
5.2. Customer represents, covenants, and warrants that the Customer will use the Services only in compliance with CloudNuro’s standard published policies and codes of conduct in effect (the “Policy”) and all applicable laws and regulations (including, without limitation, those relevant to privacy, spam, intellectual property and the like). Although CloudNuro has no obligation to monitor Customer’s use of the Services, CloudNuro may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement.
5.3. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access, or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers, and the like (collectively, “Equipment”). the Customer shall also be responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without Customer’s knowledge or consent.
6. PAYMENT OF FEES
6.1. Customers will pay CloudNurothen applicable fees for the Services as described in the relevant Order Form (or Scope of Work or in the Service itself, as applicable) in accordance with the terms therein (the “Fees”). All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement. Suppose Customer’s use of the Services exceeds any applicable limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement). In that case, the Customer shall be billed for such usage, and the Customer agrees to pay the additional fees in the manner provided herein. CloudNuro reserves the right to change the Fees or applicable charges and institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to the Customer (which may be sent by email). Suppose the Customer believes that CloudNuro has billed the Customer incorrectly. In that case, the Customer must contact CloudNuro no later than 60 days after the closing date on the first billing statement in which the error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to CloudNuro’sthe Customer support department.
6.2. CloudNuro may also choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by CloudNuro thirty (30) days after the invoice’s mailing date. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all expenses of collection, resulting in immediate termination of Service. The Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on CloudNuro’s net income.
7. TERM; TERMINATION
7.1. Subject to earlier termination as provided below, this Agreement is for the Service Term, as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”) unless either party requests termination at least forty-five (45) days prior to the end of the-current term.
7.2. In addition to any other remedies, it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, or upon five (5) days’ notice in the case of nonpayment, if the other party materially breaches any of the terms or conditions of this Agreement. Such breach is not cured during the notice period. CloudNuro may also reasonably suspend Customer’s and/or any users’ access to Services at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Service may be in violation of this Agreement or otherwise place CloudNuro (or its customers or other interests) at risk of harm, damage, loss or liability. Upon termination, Customer’s right to use and access to the Services shall immediately terminate, all outstanding Fees due for the Services for the entirety of the current Term (regardless of any early termination) shall immediately become due and payable, the Customer shall return (or at CloudNuro’s option destroy) all Software in its possession if any, and each party shall return to the other all Proprietary Information. All sections of this Agreement, which should survive termination of their nature, will survive termination, including, without limitation, all rights to payment of Fees, confidentiality obligations, warranty disclaimers, indemnification provisions, and limitations of liability.
8. CONFIDENTIALITY; PROPRIETARY RIGHTS
8.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of CloudNuro includes all Software and other non-public information regarding features, functionality, and service performance. Proprietary Information of the Customer includes non-public data provided by the Customer to CloudNuro to enable the provision of the Services (the “Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, including that CloudNuro will use industry standard measures to protect the security of any Customer Data in its possession, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
8.2. CloudNuro shall own and retain all the rights, titles, and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing. Suppose the Customer provides any suggestions, comments for enhancements or functionality, or other feedback to CloudNuro with respect to any of CloudNuro’s products or services. In that case, CloudNuro will have the full, unencumbered right to use and otherwise fully exploit the same in connection with its products and services. No rights or licenses are granted except as expressly set forth herein.
9. CUSTOMER DATA; SECURITY
9.1. Customers will own all rights, titles, and interests in and to the Customer Data. Notwithstanding anything to the contrary (but subject to the confidentiality provisions of Section 5.1 hereof), CloudNuro will have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies (including the Customer Data and data derived therefrom), and CloudNuro will be free (during and after the term hereof) to (i) use such information and data to improve and enhance its products and services and for other development, diagnostic and corrective purposes in connection with its products and services, and (ii) use and disclose such data solely in an aggregated or other anonymized form that does not identify an individual or any specific Customer (“Anonymized the Customer Data”) in connection with its business, including but not limited to CloudNuro’s offering of benchmarking services. Further, CloudNuro shall have the right to use the Customer’s name in a factual manner for marketing or promotional purposes on CloudNuro’s website and in other communication with existing or potential CloudNuro customers. To decline CloudNuro this right, the Customer must inform CloudNuro in the applicable Order Form that it does not wish to grant CloudNuro this right. No rights or licenses are granted except as expressly set forth herein
9.2. Promptly following termination of the provision of Services, CloudNuro will delete the Customer Data (unless otherwise instructed by Customer). Notwithstanding the foregoing, (i) CloudNuro shall not be required to return or delete Anonymized The Customer Data, and (ii) CloudNuro may continue to use Anonymized The Customer Data as described in Section 6.1(ii) after the termination of this Agreement.
9.3. CloudNuro shall use commercially reasonable efforts to ensure that its security infrastructure is consistent with the industry standards for virus protection, firewalls, and intrusion prevention in order to prevent unauthorized access to the Services and their underlying systems, network, servers, and applications controlled by CloudNuro. CloudNuro shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality, and integrity of the Customer Data while in CloudNuro’s possession or control. CloudNuro shall implement information security practices consistent with industry standards regarding (i) security controls to identify and protect all information and data under CloudNuro’s possession or control (including the Customer Data); (ii) employee security awareness, such as communication of all applicable security policies to, and conducting security awareness training for, CloudNuro’s employees and agents; (iii) physical security controls of CloudNuro’s facilities; (iv) protocols specifying prompt maintenance of the security of the Services, including security patches, backups and incident management procedures; and (v) protocols governing access to the Services and their underlying systems, network, servers and applications and specifying defined levels of access restricted to authorized employees and agents only. CloudNuro shall not violate or attempt to violate the security of Customer’s systems, including, without limitation, accessing Customer’s servers, accounts, or databases, or attempting to probe, scan or test the vulnerability of Customer’s systems or breach the security or authentication measures of Customer’s systems.
10. WARRANTY AND DISCLAIMERS
10.1. Each party hereby represents, warrants, and covenants to the other that: (i) it has the legal right and authority to enter into this Agreement; and (ii) this Agreement forms a binding legal obligation on behalf of such party.
10.2. CloudNuro warrants to the Customer that the Service will operate substantially in conformance with any user guides, help information, and/or other documentation pertaining to the Service that is made available by CloudNuro. CloudNuro’s sole obligation and Customer’s exclusive remedy in respect of a breach of the warranty in this Section 7.2 is to use reasonable efforts to repair or replace the Services or Software that CloudNuro determines, in its reasonable judgment, is nonconforming or, at CloudNuro’s sole discretion, to terminate Customer’s use of the Services and refund to the Customer any prepaid Fees, prorated for the remainder of the period for which such Fees have been pre-paid. The foregoing warranty shall not apply to any nonconformity resulting from any software that was (a) used in violation of this Agreement, (b) used or operated improperly, or in any manner, not in accord with the documentation, industry standard practice, or CloudNuro’s written instructions or recommendations or (c) combined, altered, modified or repaired other than by or for CloudNuro.
10.3. Services may be temporarily unavailable for scheduled maintenance or unscheduled emergency maintenance, either by CloudNuro or by third-party providers, or because of other causes beyond CloudNuro’s reasonable control, but CloudNuro shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, CLOUDNURO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS,” AND CLOUDNURO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
11. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S BREACH OF THE CONFIDENTIALITY PROVISIONS IN SECTION 5.1 OR EACH PARTY’S INDEMNITY OBLIGATIONS IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CLOUDNURO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BYthe Customer TO CLOUDNURO (PLUS, IN THE CASE OF CUSTOMER, ANY AMOUNTS PROPERLY OWED) FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CLOUDNURO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.1. CloudNuro shall indemnify, defend, and hold the Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided CloudNuro is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; CloudNuro will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by CloudNuro, (ii) made in whole or in part in accordance with the Customer specifications, (iii) that are modified after delivery by CloudNuro, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where the Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. Suppose due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by CloudNuro to be infringing. In that case, CloudNuro may, at its option and expense, (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for the Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights.
12.2. Customer shall indemnify, defend and hold CloudNuro harmless from liability to third parties resulting from Customer’s (i) breach of this Agreement, (ii) use of the Service, or (iii) violation of applicable laws, rules, or regulations in connection with the Service. CloudNuro will provide the Customer with written notice of any claim, suit, or action from which the Customer must indemnify CloudNuro. The Customer will cooperate as fully as reasonably required in defense of any claim. CloudNuro reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by the Customer.
Suppose any provision of this Agreement is found to be unenforceable or invalid. In that case, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sublicensable by the Customer except with CloudNuro’s prior written consent, except that the Customer may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. CloudNuro may transfer and assign any of its rights and obligations under this Agreement without consent. Except to the extent the parties have mutually executed and delivered a separate written agreement covering the same CloudNuro Services (a “Separate Signed Agreement”), this Agreement is the complete and exclusive statement of the mutual understanding of the parties. It supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. In the event of a conflict between the terms of this Agreement and the terms of a Separate Signed Agreement, the terms of the Separate Signed Agreement shall supersede and control. However, any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and the Customer does not have any authority of any kind to bind CloudNuro in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Without limiting anything herein, and except for payment obligations, neither party will have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. All notices under this Agreement will be in writing and will be deemed to have been duly given when received if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of law’s provisions. Any defined terms used but not defined in this Agreement shall have the definition set forth on the corresponding Order Form. If the meaning of any defined term herein conflicts with the meaning of the same defined term in the applicable Order Form, the meaning ascribed to such defined term herein shall control.